Opeskin, Brian --- "Reviewing the Judiciary Act" [2000] ALRCRefJl 30; (2000) 77 Australian Law Reform Commission Reform Journal 46

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Reform Issue 77 Spring 2000

This article appeared on pages 46 – 50 & 94 of the original journal.

Reviewing the Judiciary Act

An Australian Law Reform Commission discussion paper (DP 64) to be released in November seeks to promote debate on reform of the Judiciary Act. Brian Opeskin* outlines some of the questions to be raised in DP 64.

The Judiciary Act 1903 (Cth) is the most significant piece of federal legislation regulating the structure of the Australian judicial system. As originally enacted, the Act established the High Court, defined its jurisdiction within the limits set by the Constitution, and established the basic jurisdictional relationships between federal and state courts.

Over the course of nearly a century, the Judiciary Act has been amended by nearly 70 separate pieces of legislation, some of which have effected significant changes to its scope. The long title of the Act describes it in the same terms now as in 1903, namely, as ‘An Act to make provision for the Exercise of the Judicial Power of the Commonwealth’. However, the current scope of the Act is much broader than originally envisaged.

Despite its unquestionable importance, the Judiciary Act has rarely been the subject of systematic review. In 1968 the Judiciary Act Review Committee was established under the chairmanship of Mr Bob Ellicott QC, but it was disbanded in 1972 before it delivered its final report. In 1987 an Advisory Committee to the Constitutional Commission delivered a wide-ranging report on the Australian judicial system. However, the principal task of that committee was to inquire into the desirability of constitutional change and its report made only incidental reference to matters ripe for legislative reform.¹

Since 1903 there have been very significant changes to the structure and operation of the federal judicial system, which underpin the need for a comprehensive review of the Judiciary Act. New federal courts have been created with substantial jurisdiction in civil matters; the internal territories have been granted self-government and now exercise considerable autonomy over their judicial affairs; the expansion of civil litigation has generated concern for the efficient conduct of litigation within a federal system; and the High Court has developed new understandings about the role of Chapter III of the Constitution and its impact on federal, state and territory courts. The ALRC’s current reference provides a unique opportunity to review jurisdictional relationships in the Australian judicial system, both from the perspective of underlying principle and practical operation.

Core areas of interest

The ALRC’s terms of reference raise a large number of issues. Some are highly specific; others invite a broad inquiry into whether the current jurisdictional arrangements best serve the interest of ‘efficient administration of law and justice in the exercise of federal jurisdiction’. Two matters excluded from the reference are jurisdiction in criminal matters and the cross-vesting arrangements in the light of the High Court’s decision in Re Wakim; Ex parte McNally.²

The subject matter of the reference can be conveniently divided into seven core areas:

• Allocating federal jurisdiction between federal and state courts;

• Transferring proceedings between and within courts exercising federal jurisdiction;

• Appellate jurisdiction;

• Claims against the Commonwealth;

• The law applicable in federal jurisdiction;

• The jurisdiction of territory courts; and

• Relocation of legislative provisions.

In each of these areas the ALRC will investigate the appropriate rules for exercising federal jurisdiction. Federal jurisdiction refers to a court’s authority to adjudicate matters under Chapter III of the Constitution. In practice, this generally means the matters listed in the nine paragraphs of s 75 and s 76 of the Constitution, together with any claims that are inseverably linked with these matters.³ Many of these paragraphs identify matters in which the Commonwealth, as a polity, has an undoubted interest, such as suits in which the Commonwealth is a party and prerogative relief against Commonwealth officers. Others are the result of unthinking copying from Article III of the United States Constitution and include matters that have often been said to be inappropriate or unnecessary in Australian circumstances, such as jurisdiction based on the ‘diversity’ of residence of the parties.

Under the Constitution, federal jurisdiction may be exercised by federal or state courts, as specified by federal legislation. In some circumstances, territory courts may also exercise federal jurisdiction.⁴ Although the High Court was the only federal court established around the time of federation, other federal courts have been created from time to time. These currently include the Family Court of Australia (1975), the Federal Court of Australia (1976) and the Federal Magistrates Court (1999).⁵ State courts at all levels may also be invested with federal jurisdiction and are required to exercise the ‘judicial power of the Commonwealth’ irrespective of their consent. The federal judicial system has always relied heavily on the state court systems.

Underlying difficulties

Two concerns underlie many of the core areas identified above. The first relates to the question of how deeply federal law should penetrate the judicial systems of the states and territories; the second relates to the effect of constitutional uncertainty on the role of legislative reform.

The first issue arises because federal legislative reforms might be applied either to all courts exercising federal jurisdiction (whether federal or state) or, more narrowly, to all federal courts. Extensive use of the former possibility would invite the penetration of federal legislation into the heartland of the state court systems. It would also make it a matter of pre-eminent importance whether a state court was exercising state or federal jurisdiction in a particular case. This is the antithesis of the approach of the cross-vesting legislation, which – according to the Attorney-General of the day – sought to bring about a situation in which no court would have to determine whether it was exercising federal, state or territory jurisdiction.⁶ Although this goal was never wholly achieved, it is an understandable response to the difficulty of determining when federal jurisdiction is being exercised.

On the other hand, the extension of federal legislative reforms to all courts exercising federal jurisdiction would enable the federal parliament to provide for the efficient administration of law and justice in the exercise of federal jurisdiction, while leaving it to the state parliaments to determine the best arrangements for the exercise of state judicial power. This view emphasises the fact that the Constitution permits the federal legislature to conscript state courts for the exercise of federal judicial power. It also recognises the importance of uniformity in the exercise of this ‘national jurisdiction’ and the legitimacy of legislative attempts to make the exercise of that jurisdiction effective. However, there are constitutional constraints on investing state courts with federal jurisdiction, which arise from a commitment to federal values and the need to respect the structure and constitution of state courts.⁷

Different contexts invite different responses to the question of the reach of federal laws regulating federal judicial power. For example, in its 1992 report on Choice of Law (ALRC 58), the ALRC recommended the enactment of choice of law rules applicable in all courts exercising federal jurisdiction. This was to be supplemented by uniform state laws, which would provide identical choice of law rules in the exercise of state jurisdiction. By contrast, the ALRC’s reports on Evidence in 1985 and 1987 (ALRC 26 and ALRC 38) recommended comprehensive legislation on evidence for all federal and territory courts. If Australia-wide uniformity were to be achieved, this would be done by each state enacting a law in identical terms for all evidential matters arising in their courts, regardless of whether the matter was one of state or federal jurisdiction. Both reports shared the goal of Australia-wide uniformity, but the means of achieving that goal differed.

A second concern underlying a review of the Judiciary Act is the role of the Constitution in shaping any program of legislative reform. The Constitution grants to the Commonwealth parliament significant powers in respect of the judicature. These include the power to create federal courts (s 71); invest those courts with federal jurisdiction (s 77(i)); invest state courts with federal jurisdiction (s 77(iii)); define the extent to which the jurisdiction of federal courts is exclusive of that of the states (s 77(ii)); prescribe ‘exceptions’ and ‘regulations’ to the right of appeal to the High Court (s 73); confer rights to proceed against the Commonwealth or a state within the limits of the judicial power (s 78); prescribe the number of judges required for the exercise of federal jurisdiction by any court (s 79); and provide for the exercise of judicial power in the territories (s 122).

The Constitution also imposes significant limitations. Some of these are explicit, such as the preservation of a channel of appeal from state Supreme Courts to the High Court (s 73) and the original jurisdiction conferred directly on the High Court by s 75. However, many others have been crafted by the courts in response to their desire to maintain the separation of judicial power from other governmental powers, to preserve judicial independence, or to establish an appropriate balance between state and federal interests. These limitations, which are implied in or inferred from the structure and function of Chapter III, are the most difficult to accommodate in considering legislative reform because of the shifting boundaries of the law. In the context of the Judiciary Act reference, this presents particular difficulties in respect of crown immunity, the law applicable in federal jurisdiction, and the jurisdiction of territory courts. Proposals for legislative reform need to be sensitive to the direction in which the High Court’s jurisprudence is moving, if that can be discerned. The risk of legislative misjudgment is that reforms may soon become unnecessary, undesirable or even unconstitutional.

Some core areas examined

There are many matters that deserve examination within each of the core areas identified above. However, given considerations of space, only a small sample of them follows.

Allocating federal jurisdiction between federal and state courts. Since 1903 the federal judicial system has placed great reliance on the exercise of federal jurisdiction by state courts. The High Court once called this the ‘autochthonous expedient’, indicating (somewhat inaccurately) that the solution was home-grown or indigenous.⁸ In the early years of federation, the reasons for utilising state courts appeared to be essentially pragmatic – state courts were already in existence, they were generally well respected, and the volume of federal business was thought unlikely to justify the establishment of a comprehensive system of federal courts. State courts still exercise the vast bulk of criminal jurisdiction under federal laws. However, the establishment of specialised federal courts has created a significant federal civil justice system below the High Court.

The power of federal parliament to determine the allocation of jurisdiction between federal and state courts leads to a search for the principles or policies that might inform the choice. For example, what is the relevance of federalism, specialisation, uniformity in interpreting federal law, forum shopping, split jurisdictional problems, and state court status? More specifically, it will be necessary for the ALRC to consider these policies in examining the extent to which the High Court’s jurisdiction should be made exclusive of the states and in reviewing the changing role of the Federal Court from a ‘small court’ of specialised jurisdiction to a ‘large court’ with broad federal jurisdiction. Historically, conditions have been attached to the exercise of federal jurisdiction by state courts (s 39 of the Judiciary Act), but the current relevance of these conditions is also under review.

Transferring proceedings between and within courts. Every mature judicial system requires mechanisms for ensuring that proceedings are heard in the most appropriate forum and venue, having regard to the interests of the parties and the ends of justice. An important issue in the present context is whether federal legislation should lay down comprehensive principles for regulating the transfer of proceedings between or within federal courts or, alternatively, between or within courts exercising federal jurisdiction.

Particular issues that arise in this context are the power of a court to:

• change the venue of a proceeding;

• state a case or refer a question to a Full Court of the same court;

• transmit a case to another court higher in the judicial hierarchy;

• remit a matter to another court lower in the judicial hierarchy;

• remove certain matters pending in a court below.

Claims against the Commonwealth. The terms of reference require the ALRC to inquire and report on a number of issues that relate to one particular class of federal matters, namely, claims against the Commonwealth.⁹ This aspect of the reference raises difficult issues regarding the Commonwealth’s immunity from suit, its immunity from substantive liability, and the law applicable in claims against the Commonwealth. The complexity of these issues is compounded by the inter-relationship of various provisions of the Judiciary Act with each other (s 56, s 64, s 79 and s 80), and the inter-relationship of these provisions with the Constitution (s 75(iii), s 78). Despite a considerable body of case law, aspects of these inter-relationships remain unclear. Legislation might be used to resolve these uncertainties, except in so far as Commonwealth immunity is dictated by the terms of the Constitution itself.¹⁰

The Commonwealth has enjoyed a number of immunities and privileges, which historically attached to the Crown in the United Kingdom and were inherited in Australia as part of the common law. These included the presumption that the Crown is immune from being sued and the presumption that the Crown is immune from the operation of statute. These immunities were eroded in the 20th Century as courts and legislators contemplated an expanded field of government regulation and the entry of government into commercial fields formerly occupied by the private sector. In Australia, these questions are particularly complex because of the federal structure of government – for example, to what extent is the Commonwealth immune from the operation of state laws, and to what extent are the states immune from the operation of Commonwealth laws? In addressing these questions, DP 64 will consider whether legislation should expressly abolish the Commonwealth’s traditional immunity from being sued and instead confer a statutory right to proceed against the Commonwealth in any Australian court with jurisdiction over s 75(iii) matters. The paper will also consider whether the common law presumption of Commonwealth immunity from statute should be abolished or reversed, and the vexed question of the operation of s 64 of the Judiciary Act in so far as it purports to subject the Commonwealth to substantive liability.

The law applicable in federal jurisdiction. Federal legislation does not and cannot provide the entire body of law applicable in the exercise of federal jurisdiction. Thus, it is not possible for the Commonwealth parliament to provide every substantive legal rule necessary for the resolution of a claim against the Commonwealth, or of a matter arising between residents of different states. Federal legislation must therefore provide some mechanism by which non-federal laws are picked up and applied as surrogate federal laws.¹¹ Traditionally, this has been done by s 79 and s 80 of the Judiciary Act. Some aspects of these sections were examined in ALRC 58. However, many aspects of those sections remain unclear and continue to give rise to differing interpretations.

In addressing these issues it is necessary to reflect on some broad conceptual choices facing any review of the choice of law rules applicable in the exercise of federal jurisdiction. For example, to what extent should federal courts rely on existing state law to provide procedural or substantive rules governing their operation? The use of state law in this fashion has been the traditional choice embodied in s 79 of the Judiciary Act. Alternatively, to what extent should federal law provide its own procedural or substantive rules applicable in federal courts wherever they happen to exercise their jurisdiction? Steps have been taken in this direction in areas such as the Evidence Act 1995 (Cth), which sets out the rules of evidence to be applied in all federal courts. In choosing between these options it must be asked whether it is better to achieve uniformity between state and federal matters adjudicated within the one geographical area, or to achieve uniformity in all federal courts regardless of where in Australia the matter is adjudicated.

The jurisdiction of territory courts. The ALRC’s terms of reference require it to consider the impact of self-government on the exercise of jurisdiction in territory courts under Commonwealth laws. The reference also asks whether it is appropriate or necessary for the provisions of Part IXA of the Judiciary Act (which confers jurisdiction of the Northern Territory Supreme Court in certain matters) to be replicated for the Australian Capital Territory.

This part of the reference requires an understanding of three recurrent themes in the regulation of the judicial power of the territories: (a) the effect of self-government on judicial power in the territories; (b) the pressures for parity in the Commonwealth’s treatment of territories and states; and (c) the troubled constitutional relationship between the territories power in s 122 of the Constitution and the federal judicial power regulated by Chapter III of the Constitution. Two specific contexts in which these questions arise are the power of a Supreme Court of a territory to grant certain prerogative writs against an officer of the Commonwealth and its power to adjudicate suits between the Commonwealth and the territory.

The ALRC is interested in hearing from anyone with a view on these matters, or any of the issues raised in DP 64.

*Brian Opeskin is the Commissioner in charge of the Australian Law Reform Commission’s review of the Judiciary Act.

Endnotes

1. Constitutional Commission Report of the Advisory Committee on the Australian Judicial System Commonwealth of Australia Canberra 1987.

2. [1999] VSC 227; (1999) 163 ALR 270. The decision invalidated part of the legislative scheme for cross-vesting jurisdiction between participating Australian courts.

3. These additional claims comprise a federal court’s accrued or associated jurisdiction.

4. Northern Territory v GPAO (1999) 161 ALR 318.

5. The Industrial Relations Court was established in 1994. Although it continues to exist in a formal sense, its jurisdiction was transferred to the Federal Court in 1996.

6. Commonwealth of Australia Parliamentary Debates HR 22 Oct 1986, 2556.

7. See eg Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481; Russell v Russell [1976] HCA 23; (1976) 134 CLR 495.

8. R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 268. In the United States, state courts can exercise federal jurisdiction in certain circumstances.

9. See s 75(iii) of the Constitution.

10. See Commonwealth v Mewett (1997) 191 CLR 471, where some Justices took the view that the Constitution itself removed the Commonwealth’s procedural immunity from suit.

11. See P Nygh ‘Choice of Law in Federal and Cross-vested Jurisdiction’ in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System Melbourne University Press Melbourne 2000.